MENDOZA v. Kearny Bank, Appellant. (2026)

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant Kearny Bank appeals from an order of the Supreme Court, Kings County (Lisa S. Ottley, J.), dated August 28, 2024.  The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Kearny Bank which was pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it is granted.

The plaintiff commenced this action against the defendant Sterling Properties, Inc. (hereinafter Sterling), inter alia, for specific performance of a contract for the sale of certain real property located in Brooklyn (hereinafter the subject property).  The plaintiff's contemporaneously filed notice of pendency was indexed against a different parcel.  Subsequently, Sterling sold the subject property to the defendant Buffalo Plaza, LLC, which was added as a party defendant.  Buffalo Plaza, LLC, gave a mortgage that, as relevant here, was secured against the subject property to a certain nonparty, and that nonparty subsequently assigned the mortgage to the defendant Kearny Bank. Kearny Bank was added as a party defendant, and the plaintiff served a second amended complaint asserting causes of action against it.  Kearny Bank moved, among other things, pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it.  In an order dated August 28, 2024, the Supreme Court, inter alia, denied that branch of the motion.  Kearny Bank appeals.

A motion to dismiss pursuant to CPLR 3211(a)(1) is appropriately granted “only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190).  “[F]or evidence submitted under a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable” (Kliger–Weiss Infosystems, Inc. v. Darien Sport Shop, Inc., 241 A.D.3d 1442, 1443, 242 N.Y.S.3d 333 [internal quotation marks omitted] ).  “Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fabi v. Prudential Ins. Co. of Am., 241 A.D.3d 648, 649, 241 N.Y.S.3d 302 [internal quotation marks omitted] ).

“In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (id. [internal quotation marks omitted] ).  However, “conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss” (Godfrey v. Spano, 13 N.Y.3d 358, 373, 892 N.Y.S.2d 272, 920 N.E.2d 328).  “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Fabi v. Prudential Ins. Co. of Am., 241 A.D.3d at 649–650, 241 N.Y.S.3d 302 [internal quotation marks omitted] ).

Pursuant to CPLR 6501, a notice of pendency must be indexed in a block index.  “An error in indexing a notice of pendency prevents a record of that instrument from constituting constructive notice from the time that the notice of pendency is filed through the period that the indexing error remains uncorrected” (Del Pozo v. Impressive Homes, Inc., 95 A.D.3d 1272, 1273, 945 N.Y.S.2d 402).

Here, the Supreme Court should have granted that branch of Kearny Bank's motion which was pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it.  Kearny Bank's submissions established that a notice of pendency was not filed against the subject property, and thus, Kearny Bank did not have constructive notice of the plaintiff's claims when the mortgage was assigned to it (see Del Pozo v. Impressive Homes, Inc., 95 A.D.3d 1267, 1268, 944 N.Y.S.2d 770).  Further, the plaintiff's conclusory allegations of actual notice are insufficient to survive that branch of Kearny Bank's motion (see generally Godfrey v. Spano, 13 N.Y.3d at 373, 892 N.Y.S.2d 272, 920 N.E.2d 328).

The parties’ remaining contentions are without merit.

Accordingly, we reverse the order insofar as appealed from and grant that branch of Kearny Bank's motion which was pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it.

DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.